House Democrats are running out of time. With a little over three months to go before the beginning of primary season, House Speaker Nancy Pelosi announced on Monday that the House will hold its first formal vote of the impeachment inquiry into President Trump on Thursday, signaling that the investigation, which has taken place almost entirely behind closed doors so far, is about to go public. This is an important step in expediting the proceedings, especially if Democrats are trying to avoid an impeachment process that stretches into an election year. But it’s also a sign that even after a judge ruled that their investigation was legal, Democrats aren’t waiting on the courts to help bolster their inquiry.
This might seem like an odd capitulation, considering the courts could help Democrats obtain testimony from witnesses who have thus far refused to cooperate, including a former White House official who recently asked a judge to weigh in on whether he needs to comply with a House subpoena. And several experts told me that Trump’s claims of immunity for his aides are something of a stretch legally. But relying on the courts is also not without its risks, because reaching a final decision could take months, and even then their testimony wouldn’t be guaranteed. So Democrats may be gambling that it’s worth leaving some stones unturned to keep the impeachment process from stretching into an election year, at which point Republicans might be able to make the argument more successfully that the voters should decide Trump’s fate.
And Democrats are on a very tight timeline. Behind-the-scenes testimony is currently scheduled to stretch into November, which means even with the floor vote scheduled for this week, it’s difficult to imagine any scenario in which Democrats will be able to vote on impeachment by Thanksgiving, as some lawmakers originally suggested. Public hearings, which will include highlights from the private testimony, could happen soon, but could also last several weeks, depending on the number of witnesses who are called to testify.
Then once the hearings are over, members of the Judiciary Committee would still have to write (and approve) the articles of impeachment, before sending them to the House for a full vote. Some lawmakers are now suggesting the full vote could happen by Christmas, but even after all that, only one stage of the impeachment process would be over. And provided the House did vote to impeach, Trump’s trial in the Senate would likely not begin until January 2020. It’s hard to know exactly how long the trial would last, but President Bill Clinton’s, for example, lasted roughly five weeks.
The tradeoff of moving to act quickly without hearing from the courts is that Democrats may now be unable to hear from key figures like John Bolton, the former national security advisor who reportedly called the president’s efforts to pressure Ukraine a “drug deal,” or Rudy Giuliani, who appears to have been pulling the strings behind the shadow campaign to get Ukraine to investigate the Bidens. But some Democrats say they already have several pieces of “smoking gun” evidence against Trump, including the whistleblower report that triggered the inquiry and recent testimony from senior Ukraine envoy William Taylor, who suggested that aid to Ukraine hinged on their willingness to investigate the Bidens.
The possibility of getting Trump’s inner circle on the record may still hold special allure, since Bolton and others could provide decisive, firsthand testimony about whether Trump explicitly tied an investigation into Joe Biden’s son, Hunter, to military aid. However, this last wall of Trump’s defenses could prove particularly difficult to break without a prolonged legal fight. Giuliani has already defied a House subpoena to testify, and Bolton may also refuse to appear until a judge weighs in about whether the Trump administration’s expansive claims of immunity for presidential aides are legitimate. Steven Schwinn, a constitutional law professor at John Marshall Law School, said that claiming all high-level aides are off-limits to Congress is something of a wild legal argument. “That’s just not something the courts have ever come close to saying,” he said. He added, though, that although a ruling from the courts could end the stalemate, it probably wouldn’t be on Democrats’ preferred timeline. “It’s part of the Trump administration’s broader foot-dragging policy to try to run out the clock on cases where they’re just refusing to work with Congress,” he said.
But let’s say for the sake of argument that the case did move through the courts at the legal equivalent of light speed, delivering a final ruling within a month or two. Even if Democrats won, they’d be rewarded with a whole new array of witnesses to interview and documents to sift through — which could boost their case, but would also be time-consuming. “A win for the Democrats would probably mean months of back-and-forth in the courts, but then it wouldn’t be over — they’d have to deal with a flood of new testimony,” said Philip Bobbitt, a law professor at the Columbia University and the author of “Impeachment: A Handbook.”
Weighing these options, it’s easy to see why Democratic leadership might have concluded that the perfect is the enemy of the good, and decided to move ahead with public hearings based on the testimony they already have. It certainly is simpler in some ways for Democrats. They avoid getting caught up in a complex legal battle with the Trump administration, and present the information they’ve already gathered on their own terms. But the White House’s stonewalling may also have forced their hand because on a practical level, this is pretty much the only way to ensure that impeachment doesn’t spill over into primary season. Democrats seem to think the information they’ve already gathered is damning enough to present to the American people without pressing for further testimony — and we’ll soon see whether the public will find their case convincing.